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STATE COURT CASES
NEGLIGENCE — COMPARATIVE NEGLIGENCE — BANKRUPTCY 31-1-7563 Brodsky, etc., et al. v. Grinnell Haulers, Inc., et al., Supreme Ct. (Albin, J.) (40 pp.) Under the Comparative Negligence Act, the trier of fact must determine the percentage of fault or negligence of a party who has been dismissed from a case a result of a bankruptcy discharge. However, the trial court’s ultimate outcome charge to a jury in this case — explaining the implications of apportionment of fault among joint tortfeasors under the Act — was prejudicial to defendants because it may have led the jury to its finding of a forty-sixty allocation, shifting the percentage of fault to assure plaintiffs a full recovery of their damages. Finally, counsel may argue, in opening or closing argument, the degree of fault to be attributed to a party, provided there is some evidence in the record to support the argument. PRODUCT LIABILITY — DIET DRUGS — CLASS ACTIONS — CONSOLIDATION 32-3-7564 In re: Diet Drug Litigation; plus five individual captions, Law Div. (Walsh, J.S.C.) (33 pp.) The court addresses the question of whether trials of some of the 5,800+ N.J. phen-fen opt-out cases, presently before it for case management, should be consolidated pursuant to R. 4:38-1, and finds that common questions of law or fact arising out of the same transaction or series of transactions exist here; in short, the common issues here with respect to five cases present circumstances where the judicial economy achieved through a single trial involving several plaintiffs significantly outweighs the alternative of repetitive trials of individual cases. The court rejects, as overblown, defendant Wyeth’s claim that the jury will be confused to defendant’s prejudice, and, in this opinion, provides specific safeguards to insure that each of the cases consolidated for trial will receive individual treatment and consideration by the jury. [Decision dated Aug. 4, 2004.]
FEDERAL COURT CASES
JURISDICTION — IMPROPER JOINDER 24-7-7565 Ware, et al. v. Ciba Specialty Chemicals Corp., et al., U.S. Dist. Ct. (Simandle, U.S.D.J.) (17 pp.) The plaintiffs, residents of Alabama, filed this class action complaint in the Law Division, alleging that they were harmed when defendant companies negligently manufactured, transported and disposed solid and liquid wastes near them in Alabama; defendants removed the case to federal court citing diversity jurisdiction, arguing that the fact that one defendant was a N.J. corporation should be disregarded notwithstanding 28 U.S.C. sec. 1441(b)’s requirement to the contrary, because defendants assert that, even though that defendant is a citizen of N.J., it is not a “properly joined” defendant, but, instead, a defendant which was improperly joined to defeat removal jurisdiction. The court analyzes the facts and determines that the N.J. defendant was properly included as a defendant; therefore, the court does not have subject matter jurisdiction in light of 28 U.S.C. sec. 1441(b), and the matter is remanded to the Superior Court. [Filed Aug. 4, 2004.] LABOR AND EMPLOYMENT — GENDER DISCRIMINATION — GROOMING CODES 25-7-7566 Wiseley v. Harrah’s Entertainment, Inc., etc., et al., U.S. Dist. Ct. (Simandle, U.S.D.J.) (25 pp.) The judge grants defendants’ motion seeking partial dismissal of plaintiff’s claim and denies plaintiff’s cross-motion for summary judgment, concluding that plaintiff’s assertion that defendants’ grooming policy for employees is discriminatory against males falls outside the scope of both Title VII and the NJLAD and must be dismissed as a matter of law. Plaintiff’s remaining claim of discriminatory application of the employee grooming policy survives the motion and will proceed on its merits. [Filed Aug. 4, 2004.] LABOR AND EMPLOYMENT — SOCIAL SECURITY DISABILITY 25-8-7567 Thimou v. Commissioner of Social Security, Third Cir. (Becker, C.J.) (4 pp.) The District Court aptly concluded that the ALJ properly evaluated the appellant’s medical evidence and explained the bases for his finding at steps three and four of the sequential evaluation process for Social Security disability benefits; the panel affirms the conclusion that appellant, although suffering physical limitations at times due to her knee problems, was not “disabled” within the meaning of the Act. [Filed Jun. 22, 2004.] CRIMINAL LAW AND PROCEDURE — SENTENCING — CAREER OFFENDERS 14-8-7568 U.S.A. v. Neary, Third Cir. (Rendell, C.J.) (5 pp.) The District Court did not err in determining that defendant, convicted of bank robbery, was a career offender and by refusing to depart downward; inter alia, the court properly found that the prior offenses considered in the sentencing were distinct from one another and not “related” for purposes of the determination. [Filed Jun. 24, 2004.]
ADMINISTRATIVE LAW DECISIONS
CODE ENFORCEMENT — CONTRACT AWARDS 01-CAF-7569 Building Inspection Underwriters, Inc. v. West Amwell Twp., OAL (Tassini, A.L.J.) (10 pp. — includes initial decision by the A.L.J., adopted as the final decision by Levin, Commr.) The ALJ upholds the respondent municipality’s award of contracts for private on-site inspection and review agencies over petitioner’s challenge, citing the applicable Code provisions and finding no evidence that the successful company failed to effectively enforce the subject subcodes or that the construction official was mistaken in his belief in that company’s ability or that the municipality or the governing body acted unreasonably or in bad faith. [Initial decision decided May 4, 2004.][Final decision dated Jun. 7, 2004.] CONSUMER PROTECTION — LEMON LAW 01-CMA-7570 Brander, et al. v. American Honda Motor Co., Inc., OAL (Schuster, III, A.L.J.) (9 pp. — includes initial decision by the A.L.J. and final decision by Erdos, Dir.) The petitioners, in their appeal, merely reiterate their complaints of their 2003 Honda Civic vehicle’s pulling to the right, engine noise, and excessive oil consumption; since the ALJ had the opportunity to consider these arguments below, had the opportunity to observe the witnesses and make findings of credibility, and specifically found that petitioners had failed to meet their burden under the Lemon Law, the appeal is dismissed. [Initial decision decided Jul. 6, 2004.][Final decision dated Jul. 29, 2004.] PUBLIC EMPLOYEES — DISCIPLINE 01-CSV-7571 Vassar v. Jackson Twp., OAL (Fidler, A.L.J.) (18 pp. — includes initial decision by the A.L.J. and final decision by Howard, Presiding Bd. Member) Accepting the ALJ’s findings and analysis, the Merit System Board finds that the action of the respondent in removing the appellant — A DPW laborer — on the grounds of excessive or chronic absenteeism was not justified and reverses the action, ordering that appellant be granted back pay, benefits and seniority, as well as counsel fees. The respondent’s reaction to not having received all of the required information in appellant’s doctor’s correspondence when he had requested a leave of absence was to commence disciplinary proceedings, rather than request supplemental information; in light of respondent’s knowledge that appellant was suffering from acute anxiety and depression, issues that might make it difficult for him to precisely understand what it was respondent needed from him in order to satisfy the requirements for family leave, respondent should have advised appellant that additional information was needed. [Initial decision decided May 12, 2004.][Final decision dated Jun. 24, 2004.]
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